Miss E Ioannou v The Commissioner of Police of the Metropolis: 2215353/2023

EMPLOYMENT TRIBUNALS

Case No 2215353/2023

Between

Miss E IoannouClaimant

The Commissioner of Police of the MetropolisRespondent

Before

Employment Judge Joffe

Dr P Ioannou (instructed by lay representative) for claimant

Mr L Baynham (instructed by counsel) for respondent

Date 9 December 2024

JUDGMENT

[1]The claimant’s claim of unfair dismissal is not well-founded and is dismissed.

[2]The claimant’s claim of wrongful dismissal is not well-founded and is dismissed.

REASONS

[1]This was the claimant’s claim for unfair dismissal and wrongful dismissal. The issues for me to decide were as agreed at case management preliminary hearing in front of EJ Grubb on 7 February 2024:

[1]Unfair dismissal1.1 What was the reason or principal reason for dismissal? The Respondent says the reason was conduct. The Tribunal will need to decide whether the Respondent genuinely believed the Claimant had committed misconduct.

1.2 If the reason was misconduct, did the Respondent act reasonably or unreasonably in all the circumstances, including the Respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the Claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. It will usually decide, in particular, whether:1.2.1 there were reasonable grounds for that belief;

1.2.2 at the time the belief was formed the Respondent had carried out a reasonable investigation. The Claimant says that the Respondent did not carry out a reasonable investigation for reasons including that:1.2.2.1 Evidence was not obtained from Dr Siddig and/or there was not sufficient regard had to their evidence.

1.2.2.2 Evidence was not obtained from the forensic scientist, Ray Chapman, who spoke to DC Bllaca

1.2.2.3 The Respondent wrongly prioritised the criminal investigation before properly investigating the matter.

1.2.2.4 The investigation took too long (14 months).

1.2.3 the Respondent otherwise acted in a procedurally fair manner; The Claimant will say that:1.2.3.1 The overall and procedure took too long (14 months to conclude the investigation, 16 months to outcome).

1.2.3.2 The Respondent did not properly consider or have adequate regard to the fact that the healthcare professional’s guidance was not fit for purpose in that it did not cover the situation of taking a vaginal swab where the female is the suspect and not the victim. It was noted that this was not the first time such an issue had arisen.

1.2.3.3 Having regard to inaccurate statements made by nursing director Lorraine Lawrie, who stated that the Claimant had technically sexually assaulted a detainee.

1.2.3.4 Failing to call Dr Siddig as a witness in the gross misconduct hearing.

1.2.3.5 Failed to have adequate regard to the Claimant’s own experience and training in that she was experienced in taking vaginal swabs having worked as a nurse for 20 year, some of which was in obstetrics and gynaecology. and had received such as forensic training relating to taking samples from male detainees.

1.2.3.6 Failed to place sufficient weight on the circumstances of the evening of 23/2/22 such as:1.2.3.6.1 The Claimant informed the officer in charge of the investigation, DI Parker, that she had not had formal training form the police to take vaginal swabs from a female suspect and that the custody suit only stocked penile swab kits.

1.2.3.6.2 That the Claimant was informed by DI Parker that advice from Dr Siddig at Haven was that any healthcare professional could take the swab and the penile kits could be used, but the labels needed to be amended to specify the part of the body the sample was from.

1.2.3.6.3 That she had been cleared by Detective Seargent Stollard to take the swab.

1.2.3.6.4 That the Claimant acted in good faith.

1.2.3.6.5 The samples had been accepted by forensics and were usable.

1.2.4 dismissal was within the range of reasonable responses.

[2]Remedy for unfair dismissal2.1 Does the Claimant wish to be reinstated to their previous employment?

2.2 Does the Claimant wish to be re-engaged to comparable employment or other suitable employment?

2.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the Claimant caused or contributed to dismissal, whether it would be just.

2.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the Claimant caused or contributed to dismissal, whether it would be just.

2.5 What should the terms of the re-engagement order be?

2.6 If there is a compensatory award, how much should it be? The Tribunal will decide:2.6.1 What financial losses has the dismissal caused the Claimant?

2.6.2 Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

2.6.3 If not, for what period of loss should the Claimant be compensated?

2.6.4 Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

2.6.5 If so, should the Claimant’s compensation be reduced? By how much?

2.6.6 If the Claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct?

2.6.7 If so, would it be just and equitable to reduce the Claimant’s compensatory award? By what proportion?

2.6.8 Does the statutory cap of fifty-two weeks’ pay or £105,404 apply?

2.7 What basic award is payable to the Claimant, if any?

2.8 Would it be just and equitable to reduce the basic award because of any conduct of the Claimant before the dismissal? If so, to what extent?

[3]Wrongful Dismissal/Notice pay3.1 What was the Claimant’s notice period?

3.2 Was the Claimant paid for that notice period?

3.3 If not, was the Claimant guilty of gross misconduct? Did the Claimant do something so serious that the Respondent was entitled to dismiss without notice? Findings of fact The hearing 2. I had an electronic bundle of 672 pages and a handful of further documents were disclosed during the hearing. I had witness statements and heard oral evidence from the following witnesses: - The claimant on her own behalf; - For the respondent: o Mr P Gardner, at the relevant time a chief superintendent; o Mr Parker, an inspector in the Met Detention Command; o Mr E Bradley, area manager of the nurse practitioner team; o Ms F Bllaca, at the relevant time a detective constable in the Department of Professional Standards. Findings in the claims Relevant procedures and other guidance 3. I was referred to the following: Metropolitan Police: Healthcare Professionals Notes for Guidance (which I understood to be part of the training for custody nurse practitioners). Particular passages which were important were: - Any assessment which the Custody Nurse Practitioner (CNP) believes goes beyond their scope of professional practice should be referred to the Forensic Medical Examiner (FME) or hospital, whichever is the most appropriate- following assessment - Victims Complainants of rape should not be seen in custody and should be seen at one of the Haven sites for physical, psychological, emotional care and possible forensic evidence collection As a general rule victims should not be seen in custody, as this is not a suitable environment. However, there may be occasions when you are asked to see a victim to document their injuries. In this case, please inform the victim that the police may ask for a copy of their body map/s indicating any injuries. Gain their consent and note this on CHAP form. Female suspects of sexual assaults should not been seen by a CNP. Refer to FME. Do not take any DNA samples. The latter several sentences were printed in red as other apparently particularly important injunctions in the guidance were.

The hearing

[4]I note that it was common ground between the parties that the guidance was unambiguous as to what custody nurse practitioners should not do in relation to female suspects of sexual assault

[5]A document which was referred to and which appeared to provide context to the Notes for Guidance was the Faculty of Forensic and Legal Medicine recommendations for the examination of adult female suspects of sexual assault.

[6]This included the following relevant passages: - Principles Suspects of any gender have the right to high quality therapeutic and forensic care from an appropriately trained Healthcare Professional (HCP) (see below). When performing intimate examinations of adult female suspects of sexual assault under arrest and detained in police custody consideration must be given to the following key principles: 1. The examination must take place in an appropriate environment; 2. The HCP conducting the examination must be appropriately trained (theoretical knowledge) and have the necessary competencies (skills); 3. Cross contamination must be avoided. HCPs are not necessarily skilled in both General Forensic Medicine (GFM) and Sexual Offence Medicine (SOM). Therefore there may be a need for a joint examination to be performed. Each case should be carefully considered and a decision made on an individual basis. Arrangements should be made to work in partnership with the local SARC. The Police must ensure that they have in place commissioned services to include the assessment and management of female (including transgender) suspects where intimate samples may be needed. Environment The examination of any suspect should be performed in an appropriate environment with privacy and access to the necessary equipment.1 In the case of a female suspect the necessary equipment will include: A couch with appropriate lighting to perform a vaginal examination; Access to disposable instruments (proctoscope, speculum); The full range of forensic kits. If the examination is to be performed in a police station, the local sexual assault referral centre (SARC) may be able to provide some of the necessary equipment, such as a head lamp from an out-of-SARC examination bag used to perform examinations in sites other than a SARC, e.g. a hospital/prison. Alternatively the local or neighbouring county SARC may be willing to do an examination in the SARC facility. In either case this may be a joint examination depending on the skill set of the individual practitioner. If a suspect is moved to a SARC there will be security issues to be addressed. If, on rare occasions, a suspect is taken to the SARC care needs to be taken to avoid coincident or concurrent attendance of the complainant not just for contamination concerns but for the complainant’s emotional wellbeing.

[7]The respondent’s Standard Operating Procedure on Police Staff Discipline contains some examples of conduct which can lead to summary dismissal including: Negligence causing damage to property, equipment or injuries to any person (including yourself). This includes action that may damage the reputation of the MPS, or threaten the health or safety of other people; Misconduct likely to bring the MPS into disrepute or to hinder its effectiveness. This may be defined in terms of whether an objective observer would take the view that comments/actions would have the effect of diminishing public confidence or harming the reputation of the MPS.

[8]Reference was also made to the College of Policing Code of Ethics and in particular this provision: 5.4 Any decision to not obey orders or follow instructions, or that transgresses policing policies and other guidance, must be able to withstand scrutiny.

[9]On 28 October 2011, the claimant commenced employment with the respondent as a custody nurse practitioner (‘CNP’). She had qualified in 2002 and had previously worked in the NHS in various areas including gynaecology and obstetrics. It is relevant to note that she had experience of taking vaginal swabs in clinical settings for medical purposes.

[10]Custody nurse practitioners provide care to detainees with health needs and it appeared from the evidence that they also collect some samples for forensic purposes.

[11]Forensic medical examiners (‘FMEs’) perform a similar role for the respondent but are doctors and can prescribe. I was told that FMEs are independent practitioners employed by an agency rather than employees of the respondent.

[12]Sexual assault referral practitioners work at sexual assault referral centres (‘SARCs’) such as the Haven.

[13]Mr E Bradley was area manager of the nurse practitioner team and the claimant’s line manager.

[14]In early 2022, the claimant was working at Charing Cross Station custody suite. Mr K Parker was the inspector with overall responsibility for that custody suite. He started in that role in February 2022.

[15]On 22 February 2022, a female masseuse was arrested on suspicion of sexually assaulting a male customer by engaging in penetrative sexual intercourse without consent. The alleged victim had learning difficulties so there were potential safeguarding issues.

[16]I saw a timeline from the early hours of 23 February 2022, prepared for the claimant’s disciplinary process.

[17]The suspect was detained from 00:21 for the purpose of taking samples. Sometime between 00:21 and 01:03 there was an initial conversation between Mr Parker and the claimant in the nurse’s room. Mr Parker said that he went to speak with the claimant and asked about available kits to take samples from a female. The claimant said in evidence that she told Mr Parker that they did not normally takes samples from women and that they only stocked penile swab kits. Mr Parker in evidence said that the claimant did not say that they did not routinely do these swabs. I ultimately considered that whether the claimant had said that or not did not make a material difference to my findings on the issues.

[18]In Mr Parker’s statement for the disciplinary, he said: ‘I asked about available kit to take such samples. It was apparent that there wasn’t kit available and I asked “what do we use for men” and I was shown Penile Swab Kits. I left the Medical Room and returned shortly after to look at all of the different sample kits that we had which were stored in a cupboard in there. I left the Medical Room again and returned to the CSI Office to complete further enquiries.’

[19]The claimant said in evidence that she did not explicitly inform Mr Parker that she had not received training from the respondent to take samples from female detainees, although she subsequently maintained at the disciplinary stage that she had said that. She did not tell him that she would be contravening the guidance for CNPs.

[20]Mr Parker in his statement said he then spent about 20 minutes trying to find guidance on what to do in this situation. The timeline continued: 01:03 Mr Parker called Met Forensic Command who were not able to assist and suggested he contact the Haven 01:07 Mr Parker went back to nurse’s room to take penile swab kit back to his room 01:12 Mr Parker called the Haven and left a message 01:17 to 01:23 Mr Parker spoke to Dr Siddig1 at the Haven.

[21]Mr Parker said in his statement to the disciplinary hearing: ‘I spoke with Dr Siddig and explained the circumstances of the case. Dr Siddig was already aware and mentioned that they had been called regarding the victim. We briefly discussed the rarity of the case in that the roles of victim and suspect appeared to be reversed, man is often the suspect and the female the victim. I asked about the best approach in the taking of samples and explained that we only held penile swab kits not vaginal swab kits. Dr Siddig asked if the swabs had either blue or black lids (I can’t remember which) and I opened a kit and the lid colours matched. Dr Siddig explained that ‘a swab is a swab’, they’re not manufactured for penile or vaginal purposes, the only difference being the labels. Dr Siddig advised that if I had a HCP present who could take them, then the labels could be amended to show which swab was for which part of the body. The call ended shortly after that at approximately 0123.’ 1 There were numerous spellings of Dr Siddig’s name in the bundle. I have adopted this one as it is the spelling used by an employee of the Haven and seems most likely to be correct.

[22]Resuming the timeline: 01:25 to 01:27 Mr Parker spoke to Detective Sergeant Stollard who explained the samples he was looking for. He explained that had spoken to Dr Siddig who proposed that the HCP use the penile swab kit and amend the labels. DS Stollard accepted this approach. 01:28 Mr Parker spoke to the claimant in the corridor. He told her what Dr Siddig had said and she agreed to take the samples, apart from an endocervical swab which requires use of a direct light source and a speculum which she was not trained to use and which was not kept in the custody suite. He said that he outlined what swabs DS Stollard was looking for ‘if you are happy to do them’. The claimant said ‘Yes, that’s fine.’ In evidence to the Tribunal Mr Parker said that all the claimant had to say was that she was not trained to do the swabs and could not do them: ‘Everything would have stopped at that point’. The claimant accepted that Mr Parker made a request not an order. 01:36 to 01:39 Mr Parker spoke to DS Stollard for the final time to get a formal request from him for samples to be taken from the suspect. 01:47 Authorisation for samples recorded. 02:20 Mr Parker visited the nurse’s room to check on whether consent had been obtained from the suspect. He confirmed that the claimant, the suspect and two female officers were in the room along with a language line interpreter on the phone. The claimant got consent from the suspect using the interpreter; she told her that she had the right to refuse the swabs. 02:25 to 02:40 Taking of samples by the claimant.

[23]The claimant said in evidence that she was aware that she was acting against guidance and that privately she had reservations. She said that she tried to contact the on duty forensic medical examiner and failed to get through. There is no record of such a call and the claimant made no note. She said that she must have misdialled and believed she had dialled the right number. Her evidence in this respect was accepted by the respondent at her disciplinary hearing and not challenged in these proceedings.

[24]The claimant said that her thinking was that she knew how to take a vaginal swab and knew how to handle and treat swabs forensically as she had done penile swabs for forensic purposes.

[25]In her witness statement, she said that she went against her guidance and better judgment for number of reasons. It was her nature to be helpful and she felt competent to do the swabs. She did not want to appear difficult and obstruct a police investigation; she felt inferior in rank to a police inspector and did not feel it was her place to challenge his request. She had felt bullied at her previous station for three years and did not want to appear difficult and get a reputation at Charing Cross, where she had only been for five months.

[26]Mr Parker explained in evidence that it was not his role to order a nurse to do anything. He had no management authority over the claimant, as she accepted.

[27]On the morning of 23 February 2022, another custody nurse practitioner, Ms Mellon, approached Mr Bradley because she had been asked to take the remaining samples from the female suspect and was concerned that the claimant had taken intimate samples.

[28]Mr Bradley reported the matter as a potential conduct issue on the respondent’s form MM1. He spoke to various people including the claimant, Ms Mellon and Mr Parker. He recorded that Ms Mellon was shocked to discover what had occurred and that the claimant denied being pressured into taking the samples. Mr Bradley wrote: ‘As a Nurse, Eleni has acted outside of her sphere of clinical competence carrying out a procedure which she is neither qualified or permitted to do.’

[29]He discussed what had happened with the respondent’s Healthcare Director, Ms Lawrie, who considered the matter required investigation as gross misconduct and to be reported to the GMC.

[30]On 28 February 2022. Mr Bradley emailed Mr Parker about the incident.

[31]On 7 March 2022, the claimant was put on restricted duties.

[32]On 30 March 2022, Ms Lawrie wrote to Mr Bradley and others: The CNP has clearly breached all professional guidelines. As a Registered Nurse she is only permitted to work within her scope of practice. She has undertaken a procedure that she has never been trained to do, and has actually technically sexually assaulted a detainee. Regardless of whether the CSI spoke to a doctor at the Haven or not, she should not have blindly accepted second hand information and should have refused to take the sample. She used a penile swab kit, took samples without any appropriate equipment or training and my main concern is that she appears not to believe that there is a problem and is asking when she can come back to custody. She is already on a final written warning I believe very strongly that this is a purely clinical decision, which falls to me, and that she should be investigated for alleged gross misconduct. She will also be reported to our professional body the NMC. The CNP has worked for the MPS for many years, and this is totally unacceptable. Even a newly qualified nurse would not undertake a procedure that they have not been trained to undertake. She is a danger to our detainees, herself and the Met’s reputation. I am happy to discuss further, but believe that this is a straightforward case. As Healthcare Director I believe that this decision should rest with me

[33]On 15 May 2023, in line with the respondent’s disciplinary procedures, an Appropriate Authority certificate was issued by a chief inspector, Mr D Foster, saying that the case should go to a gross misconduct hearing.

[34]The matter was also referred to the Independent Office for Police Conduct but on 22 May 2022 the IOPC wrote to the respondent’s Department of Professional Standards (‘DPS’) to say that the matter should be subject to local investigation.

[35]On 7 June 2022, a detective constable, Ms Bllaca from the DPS, wrote to the claimant to say she had been appointed to investigate. The Notice of Investigation said: ‘DPS have been informed that you have taken vaginal samples from a female detainee on 23/02/2022, without any prior training and without the adequate tools to do so. Your line manager has explained that, there is no guidance or training provided to Nurse’s or FME’s to take vaginal samples from detainees with The Metropolitan police. As such, any action taken to obtain these samples is stepping outside of the clinical guidance both at The Met and as clinicians. As a Nurse, you have acted outside of your sphere of clinical competence carrying out a procedure which you are neither qualified nor permitted to do. The vaginal samples that you have obtained from the female detainee are in connection to custody number 01 CX/1 023/22. You have taken the samples using the forensic kit especially made to be used for penile swabs. Please be advised that there is potential for further allegations to be made as this investigation progresses.’

[36]On 11 August 2022, the claimant was interviewed by Ms Bllaca.

[37]The claimant told Ms Bllaca that Mr Parker had spoken to a doctor at the Haven who had said that: A swab is just a swab. And said that if you have a healthcare professional present at the station, then it would be fine to do the swabs. So obviously during that time I was again a little bit apprehensive. On my guidelines it says that we’re not to swab female suspects, refer to FME, but there’s hardly any FMEs in the MPS, a lot of them have been filtered. So we’re given an extension which I called at Kingston because there’s not so many doctors around, sometimes they cross cover or maybe they’ve gone to do blood somewhere else, so I had tried to call an FME at Kingston but there was no answer. So I was okay, should I have waited? Because I know that there’s a forensic window, we have a victim involved in this case. So Mr Inspector PARKER had come back to me and said okay, well, I’ve spoken to The Haven, this particular doctor, a swab is just a swab; there isn't any specific type of swab, it’s a universal one, and he’d obviously instructed me to do so. I didn’t want to seem like that I was going to challenge him, who am I to challenge an inspector? I didn’t want to impend the investigation v there was a victim involved and I was trying to help the police with the case. …. But I knew that there was a victim, I knew that there was a window that the police had to obtain these samples. I was doing it purely to help the police and help the victim.

[38]The claimant admitted that she was aware of the guidance notes about female suspects of sexual assaults.

[39]Ms Bllaca invited the claimant to send her further evidence if she wished to do so and on 28 August 2022, the claimant sent an email to Ms Bllaca to add some points of evidence. She referred to the email Ms Lawrie had written in which she referred to the claimant having a final written warning and said that that was not true and it was not on her record.

[40]The claimant suggested in evidence that she wrote this email in response to an email from Ms Bllaca asking about whether she had a final written warning but there was no such email in the bundle and the way the claimant’s email was written accorded with Ms Bllaca’s account of its genesis. It was suggested on the claimant’s behalf that Ms Bllaca had attempted to entrap the claimant but I could see no evidence to support that suggestion.

[41]There was significant delay in the progress of the investigation after this. It appeared from the documentary record that there were aspects of the investigation ongoing until December 2022, including statements being taken from witnesses and phone records being investigated to ascertain whether the claimant had attempted to telephone an FME as she said she had. There was further delay from the beginning of 2023 until 19 April 2023 when the investigation report was produced. That delay was not explored in evidence. It was somewhat surprising that the respondent had not dealt with it in chief in circumstances where the issue of delay was included in the list of issues. I would also have expected it to be pursued by the claimant in questions for Ms Bllaca in particular, although I of course recognise that her brother was representing her as a lay representative and not a lawyer, and was doing his best in the circumstances. The net result was that there was a paucity of evidence on this point although I heard that Ms Bllaca had a case load of some twenty cases at any one time.

[42]In Ms Bllaca’s 19 April 2023 investigation report there were three further allegations which were not ultimately upheld and which were made as a result of investigation into the claimant’s assertion that she had attempted to contact the FME and the suggestion that she was being misleading when she said she did not have a final written warning.

[43]On 22 May 2023, the claimant was signed off work and prescribed antidepressants. I record that these disciplinary proceedings and their aftermath have taken a very significant toll on the claimant’s wellbeing.

[44]On 30 June 2023, the claimant was invited to a gross misconduct hearing. I record at this point that an aspect of the respondent’s procedure seemed to require a staff member who had a final written warning or reprimand on her record to be referred for a type of meeting called a ‘recommendation for dismissal hearing’ at which: It is for the individual to provide reasons to the panel as to why the recommendation for dismissal should not be accepted.

[45]I heard from Mr Gardner that the claimant’s hearing was not of this type because for various reasons her earlier reprimand was treated as spent and was in any event considered irrelevant by the disciplinary panel.

[46]The allegations the claimant had to answer were as follows: a) That the claimant knowingly contravened the respondent’s healthcare professionals’ guidance when taking intimate swabs from a female detainee; b) That the claimant knew she was not forensically trained to take the samples but took them regardless; c) That the claimant was dishonest in informing an investigating officer that she had tried to contact a FME before taking the swabs; d) That by not contacting the FME before taking the swabs there was a further breach of the MPS’ Healthcare Professionals guidance for nurses; e) That the claimant had stated that she did not have a final written warning when she knew or ought to have known that this was misleading as she had a formal reprimand.

[47]On 27 July 2023, there was a gross misconduct hearing chaired by Chief Superintendent Mr P Gardner. The panel members were DCI M Ryder and Mr A Brown, a member of police staff. The hearing was also attended by Ms Bllaca, the investigating officer. The claimant attended with her PCS representative, Mr D Parrock.

[48]Witnesses called by Ms Blacca were Mr Parker and Mr Bradley; they were questioned by Mr Parrock. Ms Bllaca herself was also questioned by Mr Parrock. The claimant spoke on her own behalf. Ms Blacca did not consider Dr Siddig a relevant witness and had not called her to give evidence.

[49]It was clear from Mr Gardner’s evidence that gross misconduct hearings are to a degree regarded as adversarial proceedings. Police officers would be represented by counsel. Staff accused were expected to call witnesses in their defence.

[50]Mr Gardner said that he would have expected the claimant to call Dr Siddig if she felt that she had relevant evidence to give. He said that the claimant had an experienced union representative and it was incumbent on him to call Dr Siddig if he thought she had relevant evidence to give. He himself did not think Dr Siddig was relevant.

[51]Mr Gardner said that the panel ignored the email from Ms Lawrie which was in the bundle, which he said was inflammatory and jumped to conclusions; it did not sway the panel.

[52]The two allegations about the FME and the allegation about not revealing the reprimand were dismissed however the allegations relating to the carrying out of the swabs were upheld.

[53]The panel’s outcome as delivered by Mr Gardner referred to mitigation put forward by the claimant: I am afraid Ms Ioannou, that the panel believes that you should be dismissed without notice. I am now going to talk through our rationale and obviously you have the opportunity to appeal this in due course. The panel has considered all documents submitted and all the evidence presented at today's hearing. The panel has discounted the email from Lorraine Lawrie, but all other documents, including character witness statements, have been considered in determining the appropriate sanction. We recognise as stated in mitigation that CNP Ioannou only acted in good faith and was trying to do the right thing. We also recognise the strong character references that have been submitted in her favour. Likewise, we note her extensive experience and knowledge. We also accept that the MPS policy in this area needs improvement and clarification. However, we are also clear that the policy is explicit in stating that CNP Ioannou could not undertake a vaginal sample from a suspect in custody. We also know the information given by her inspector from Dr Sadik [Siddig] at The Havens, but also consider the individual responsibility of CNP Ioannou has for her own actions that custody officers and staff would always defer to the CNP on medical matters as is policy. We have considered the implications had the subject been guilty of the alleged serious sexual assault and the impact this procedure would have had on the case. We also note the importance of trust and confidence in the MPS' ability to properly investigate and prosecute serious sexual assault cases, and particularly in light of the current performance measures the MPS has been held to in this area. We also note the vulnerability of the subject by way of the situation, that consent was based on incomplete information, and the position of trust that CNP Ioannou was in. … We have empathy for CNP Ioannou's motivations. However, the policy is clear, and responsibility for this action rests with no one other than CNP Ioannou. We have a duty of care to suspects in our custody, irrespective of the allegations they are facing, and, in this instance, consent was obtained for a highly invasive procedure without full disclosure that this procedure was outside of policy. This left the subject in an extremely vulnerable position and undermined any potential investigation or prosecution. We also give regard to the gold intentions for MPS response to misconduct and professional standards as set out by AC Grey. In particular, we note the objectives which are not in priority order that reflect the College of Policing purpose and misconduct outcomes and the focus on delivery of the MPS turnround priorities:(1) to maintain public confidence in the reputation of the police service,

(2) to uphold the highest standards of policing to deter misconduct, and

(3) to protect the public. In this instance, we feel that any lesser standard would fail to promote or uphold these objectives.

[54]In the written outcome he said: We have considered less lesser sanctions, including a final written warning. However, we do not feel that despite CNP Ioannou's intentions, this is suitable due to the seriousness of this breach of professional standards.

[55]In the written outcome there is also reference to mitigation, particularly in this passage: Our view as to mitigating factors affecting the seriousness of the failure in professional standards. In mitigation we find that CNP Ioannou acted in good faith and was trying to do her best in a difficult situation. We also find that CNP Ioannou was trying to do the right thing for the victim, and to meet the request of the investigating team to get to the right outcome. We also find that the MPS guidance as to what to do under these circumstances is not clear and should be amended. We have also taken into consideration CNP Ioannou's experiences both within custody and also in the wider medical environment. We have also taken into account the statement of the subject who refers to the dignity and compassionate care she received.

[56]The claimant was dismissed and received a letter confirming her dismissal and notifying her of her right of appeal.

[57]There was also a document entitled: LOCAL/ORGANISATIONAL LEARNING IDENTIFIED FOLLOWING ANY CASE INVOLVING THE POLICE STAFF DISCIPLINE SOP which indicated that the panel had identified the following local learning points in relation to the case: The “Healthcare Professional’s Notes for Guidance” must be updated to have a clear policy as to the actions to be taken when intimate samples are required from a female suspect. Including a full a clear process documenting who and where and how these samples may be taken. 2. All CNPs must be updated and trained in this policy as well as all Custody Inspectors.

[58]Although Dr Ioannou raised issues in evidence and submissions about whether the respondent had followed up on its organisational learning, the issue of whether or not the respondent had made improvements in this respect did not ultimately cast any light on the fairness of the claimant’s dismissal.

[59]On 2 November 2023, there was an appeal hearing in front of a commander, Mr P Travers and panel member Ms A Clark.

[60]The appeal was not upheld. The panel found: We have considered all of the evidence regarding the sanctions in this case, including the option for a final written warning, which is our only other option to dismissal. For the following reasons we have upheld the original panel decision to dismiss without notice. Contravention of the MPS policy is in our view also so serious that a final written warning does not reflect the gravity of the incident. The investigation of sexual offences remains a priority for the MPS and is hugely impactive on the MPS reputation and subsequent community trust and confidence. Your actions to take the samples undermines this trust and although they may have been taken with the best of intentions, fails to deal with the possible future consequences of these actions.

[61]There were no specific criticisms made of the appeal process by the claimant and I did not hear from any witness from the appeal panel. Evidence about what should happen in respect of intimate examinations of female suspects in sexual offence cases

[62]I heard some evidence about what should happen in these cases. All of the respondent’s witnesses said that the guidance for CNPs was clear as to what should not happen but accepted that there was a lack of clarity as to what should happen, apart from the fact that a CNP should refer to an FME. It was clear that these cases are very rare.

[63]There was evidence in the form of an email chain dating from 21 – 25 July 2022 between Ms Bllaca and Mr R Chapman, consultant forensic scientist for the respondent. Mr Chapman reported on the response from Haven staff about the issues raised in relation to the February incident. This document was not in the bundle of evidence for the gross misconduct hearing but it was ultimately produced at that hearing. It was also produced late for the Tribunal hearing and had to be added to the bundle during the hearing.

[64]The email included what was described as a response by the Haven’s lead doctor to a complaint about the advice given by Dr Siddig: A while later she got a call from an Inspector and recognised the scenario – she mentioned that she had already spoken to a colleague of his re the suspect and that we could not see her. The Inspector said he had “someone” who would see her, and that he wanted to know what kind of swabs they needed because they only had penile swabs. Dr Siddig asked him what the penile swabs looked like and once he conﬁrmed they looked similar to the swabs we would use, she explained that the physical swab was the same so it did not matter that they were labelled as penile swabs, they could be used for vaginal swabs and labelled as such. He thanked her for the information and did not call back. The Havens have advised the police several times: We cannot assist with such examinations and directed them to guidance on the FFLM website (and attached) Recommendations for the examination of female suspects of sexual assault - FFLM

[65]Mr Bradley’s evidence about cases of sexual assault involving female suspects was that he was aware of two cases – one he had not been involved in directly some years earlier and one in which he had been involved, postdating the incident the claimant was involved in, in summer 2023, where he had had to advise an officer. In both cases he said that the suspect was diverted to a SARC. He did not have any ongoing involvement in the case he had had to advise an officer about.

[66]His evidence to the Tribunal was that female suspects were examined at SARCs, including the Haven.

[67]Mr Bradley said that the respondent was now working with another constabulary on a plan for some HCPs to be trained to carry out these examinations in a third place other than custody suites.

[68]In response to a Tribunal order for further information, Mr M Barker, healthcare director at the respondent, wrote: I am aware of 2 cases in 2023 when a female intimate sample was requested, this was refused by the CNP and arrangements made with the SARC (Haven) to assess the detainee and take samples.

[69]In evidence Mr Parker said that he believed that SARCS do not see female sexual assault suspects. Law Unfair dismissal

Law

[70]The test for unfair dismissal is set out in section 98 of the Employment Rights Act 1996. Under section 98(1), it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a reason falling within subsection (2), e.g. conduct, or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

[71]Under s 98(4) ‘… the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.’

[72]Tribunals must consider the reasonableness of the dismissal in accordance with s 98(4). However, tribunals have been given guidance by the EAT in British Home Stores v Burchell

[1978] IRLR 379

;

[1980] ICR 303

, EAT. There are three stages:(1) did the Respondent genuinely believe the Claimant was guilty of the alleged misconduct?

(2) did the Respondent hold that belief on reasonable grounds?

(3) did the Respondent carry out a proper and adequate investigation?

[73]Tribunals must bear in mind that whereas the burden of proving the reason for dismissal lies on the respondents, the second and third stages of Burchell are neutral as to burden of proof and the onus is not on the respondents (Boys and Girls Welfare Society v McDonald

[1996] IRLR 129

[1997] ICR 693

[74]I have reminded myself that the question is whether dismissal was within the band of reasonable responses open to a reasonable employer. It is not for me to substitute my own decision.

[75]The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason. The objective standards of the reasonable employer must be applied to all aspects of the question whether an employee was fairly and reasonably dismissed. (Sainsbury’s Supermarkets Ltd v Hitt

[2003] IRLR 23

, CA).

[76]In reaching their decision, tribunals must also take into account the ACAS Code on Disciplinary and Grievance Procedures. By virtue of section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992, the Code is admissible in evidence and if any provision of the Code appears to the tribunal to be relevant to any question arising in the proceedings, it shall be taken into account in determining that question. A failure by any person to follow a provision of the Code does not however in itself render him liable to any proceedings.

[77]Inconsistency of treatment between employees may support a claim of unreasonableness in the following circumstances:a. where employees have been led by an employer to believe that certain conduct will not lead to dismissal;

b. where evidence of other cases being dealt with more leniently supports a complaint that the reason stated for dismissal by the employer was not the real reason;

c. where decisions made by an employer in truly parallel circumstances indicate that it was not reasonable for the employer to dismiss. Hadjioannou v Coral Casinos Ltd

1981 IRLR 352

, EAT

[78]The employee’s length of service is relevant when deciding the appropriate sanction although there can be conduct so serious that dismissal is appropriate irrespective of length of service: Strouthos v London Underground Ltd

2004 IRLR 636

, CA. Delays in investigation

[79]The Acas Code makes clear that investigations should be carried out without unreasonable delay because of the importance of establishing the facts and putting allegations to the employee promptly before recollections fade.

[80]In Christou and anor v London Borough of Haringey

2012 IRLR 622

, EAT the EAT upheld a decision that the claimants’ dismissals for misconduct were fair, despite an 18-month delay between the alleged misconduct and a second set of disciplinary proceedings being commenced. Slade J considered that the tribunal had assessed whether there was any prejudice to the appellants caused by the delay but referred to judgment of Elias J in A v B

[2003] IRLR 405

[81]In A v B, Elias J said that delay may render a dismissals unfair even where there is no prejudice. That was the case in A v B where the delays were described as extraordinary. The Tribunal had erred in concluding that the delays would only render the dismissal unfair if they could have been shown in some way to have affected the overall outcome of the hearing Conclusions Unfair dismissal Issue: 1.1 What was the reason or principal reason for dismissal? The Respondent says the reason was conduct. The Tribunal will need to decide whether the Respondent genuinely believed the Claimant had committed misconduct.

Conclusions

[82]The claimant has accepted she acted contrary to her guidance and has not put forward any alternative reason for the dismissal. It was clear that the reason for the dismissal was the claimant’s conduct. Issue: 1.2 If the reason was misconduct, did the Respondent act reasonably or unreasonably in all the circumstances, including the Respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the Claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. It will usually decide, in particular, whether: 1.2.1 there were reasonable grounds for that belief;

[83]In essentials, the claimant admitted the conduct for which she was dismissed. She carried out the swabs when she knew they were contrary to the guidance for CNPs and that she had not had specific training for conducting this type of swab for forensic purposes. There were clearly reasonable grounds for the respondent’s belief. Issue: 1.2.2 at the time the belief was formed the Respondent had carried out a reasonable investigation.

[84]Even where misconduct is in part admitted, as was the case here, the employer may need to investigate what is said by the employee by way of explanation and mitigation. I went on to consider this issue in the round and the specific criticisms made by the claimant. Issue: The Claimant says that the Respondent did not carry out a reasonable investigation for reasons including that: 1.2.2.1 Evidence was not obtained from Dr Siddig and/or there was not sufficient regard had to their evidence.

[85]Ms Bllaca and the panel formed the view that this evidence was not relevant. I had to ask whether that decision was within the band of reasonable responses.

[86]What was the value of Dr Siddig’s evidence? Dr Siddig had said on the night that a penile swab kit could be used in place of a vaginal swab kit. Dr Siddig was not employed by MPS and would not have been aware of MPS policies or what training the claimant had had. Both the claimant and Mr Parker were able to give evidence about what Dr Siddig had said and what had been relayed to the claimant about what Dr Siddig had said.

[87]It was suggested on the claimant’s behalf that it was necessary to obtain an expert medical opinion and that Dr Siddig would have fulfilled that role.

[88]The ambit of any such medical proposed expert evidence was not clear to me. Such evidence could have reflected on question of whether the claimant was competent to carry out the procedure from a medical perspective and possibly on the difference between carrying out the procedure for medical and forensic purposes, which might have had some relevance to question of how serious the claimant’s action were in terms of the risks they created.

[89]Dr Siddiq might have been able to give more detailed evidence as to any difference between the swabs carried out by the claimant and a swab carried out by someone with forensic training in that particular process and might have reflected to some extent on the level of risk that the evidence would not be acceptable in a criminal investigation. However, it seemed to me that a reasonable employer could have concluded such evidence was not central to the issues being considered. It could not have made a difference to the admitted position that the claimant was doing, by her own admission, something which was against policy and for which she was not specifically trained. The panel did not reject the claimant’s evidence that she was trained and experienced in taking vaginal swabs for medical purposes.

[90]It was clear in any event from the FFLM guidelines that the examination as carried out by the claimant was unsatisfactory in terms of the conditions and equipment available to the claimant and not compliant with those guidelines.

[91]I concluded that it was not outside the range of reasonable responses not to seek medical evidence from Dr Siddig in those circumstances. Issue: 1.2.2.2 Evidence was not obtained from the forensic scientist, Ray Chapman, who spoke to DC Bllaca

[92]What would that evidence have gone to? The respondent accepted that there was a lack of clarity as to where the female swabs should be done and by whom. What was not unclear was that HCPs should not do them.

[93]Mr Chapman could have given an opinion on the quality of the examination carried out by the claimant from a forensic perspective. I concluded that the respondent could reasonably have concluded that such evidence was not required for the same reasons as Dr Siddig’s evidence was not necessary. The essential point was that the actions of the claimant were contrary to clear guidance and the FFLM guidelines.

[94]So far as the emails and attachments provided by Mr Chapman are concerned, these were ultimately available at the gross misconduct hearing, having been overlooked by Ms Bllaca as relevant evidence earlier. The claimant and her representative had the chance to make submissions about the email and the attachment and ask questions about them.

[95]The issue about whether the Haven did or did not take female suspects was not central to the issue before the disciplinary panel for reasons I discuss more fully later in this Judgment.

[96]The attached guidelines from the FFLM did not assist the claimant’s case as they tended to show that the claimant had taken swabs in circumstances which were far removed from those recommended by the FFLM.

[97]It was suggested in the claimant’s submissions that it should have been apparent from these documents that Mr Bradley had made a false statement about where female suspects were seen but that he had escaped sanction for making a false statement. This was said to suggest the panel was biased. This suggestion was not put to Mr Gardner but in any event, it seemed entirely possible that the panel might not have been struck by the discrepancy, which arose after Mr Bradley gave evidence and which could have had a number of benign explanations. It appeared to me from Mr Bradley’s evidence to the Tribunal that it did have such a benign explanation. In his very rare encounters with the issue, he clearly formed the impression that a referral of the suspect to a SARC was the appropriate route. It was not clear that the attitude of the Haven in 2022 reflected its policy at all times or the policy of other SARCs. Issue: 1.2.2.3 The Respondent wrongly prioritised the criminal investigation before properly investigating the matter.

[98]Given the nature of the respondent (that is it a police force), it is clear that any criminal process would need to be investigated as a matter of priority, not least because an employee who is facing potential criminal charges may be disadvantaged if pressed to give evidence in internal disciplinary proceedings whilst a criminal investigation is ongoing.

[99]It was suggested on the claimant’s behalf that the decision to investigate a possible criminal offence was itself unreasonable. I can well understand why the claimant would have been extremely upset by the decision to investigate the matter in that way, particularly in circumstances where her intentions had been to help and she had behaved toward the suspect in a way which the suspect herself had commended.

[100]I would have needed at the very least some detailed submissions on the effect of criminal law in the area of assaults occasioned as a result of lack of informed consent in order to be persuaded that there was no reasonable prospect of the particular circumstances giving rise to a criminal offence. I did not have those submissions and additionally it did not seem to me that it was generally part of the role of this Tribunal to express opinions on policing matters, although I do not rule out there being circumstances in which it might be appropriate.

[101]In circumstances where the claimant had conducted an intimate examination contrary to the respondent’s policy, knowing her actions to be contrary to that policy, and where the respondent owes duties to the suspect, I could not have said that a criminal investigation was unreasonable even if this had been an appropriate case in which to opine on a policing matter. Issue: 1.2.2.4 The investigation took too long (14 months).

[102]I considered the issue of prejudice. None was suggested by the claimant. The investigation itself was reasonably prompt. The claimant was aware of the issue fairly promptly and she and other witnesses were spoken to within a reasonable time by Mr Bradley even if the DPS process took place some time later.

[103]I do not gainsay the effects on the claimant of the delay, about which she has given vivid evidence. I also bear in mind that this issue is not just about prejudice. Delay can give rise to a finding of unfairness even without any evidence that a prompter process would have made a difference to the outcome.

[104]There was some significant unexplained delay in the production of the outcome report and the overall time taken was longer than it should have been but it was certainly not on the scale of, for example, the delay in A v B and nor was it accompanied by the sorts of procedural failings which occurred in that case.

[105]It is unfortunate that I heard no evidence about the reason for delay, nonetheless I ultimately did not conclude that that delay of itself took the investigation outside the range of reasonable investigations. Looking at the investigation in the round, it was carried out with care by Ms Bllaca. It encompassed a reasonable range of evidence and span of individuals given the issues which were in play which were about the reasons for the claimant’s actions and mitigating circumstances.

[106]I could not say the investigation was not within the band of reasonable responses, even bearing in mind the delay. Issue: 1.2.3 the Respondent otherwise acted in a procedurally fair manner; The Claimant will say that: 1.2.3.1 The overall and procedure took too long (14 months to conclude the investigation, 16 months to outcome).

[107]I have considered this issue already, raised as a failing in the investigation. Issue: 1.2.3.2 The Respondent did not properly consider or have adequate regard to the fact that the healthcare professional’s guidance was not fit for purpose in that it did not cover the situation of taking a vaginal swab where the female is the suspect and not the victim. It was noted that this was not the first time such an issue had arisen.

[108]The problem with the guidance was not that it was not very clear what CNPs should not do, it was that there was a lack of what was described as an ‘add on’ – ie guidance as to what ultimately should happen in cases of female suspects of sexual offences.

[109]Ms Bllaca and the panel were aware that there was very clear guidance as to what should not happen and they were correct about that. The claimant herself never suggested that the guidance was not clear in that respect.

[110]A subtler point made on the claimant’s behalf was that this put someone like her in a dilemma, because there was an issue about where the suspect could be taken and an evidential window in which the swabs would need to be taken. A conscientious and caring CNP, as the claimant no doubt was, would want to assist It was not put to the claimant that she would know what that window was in these cases although I heard evidence that it was 7 – 10 days.

[111]Nonetheless, the facts as related by the claimant did not support the view that the situation had reached some sort of crisis point such that the lack of guidance as to how this evidence should be obtained would provide substantial mitigation: - She had not made a further attempt to contact the FME after initially not getting through by telephone; - She was not being pressed by Mr Parker and she was not being told that there was a concern about the evidential window.

[112]In any event a larger point about guidance and rules, particularly for professionals and particularly in the area of policing, which a reasonable employer would have been entitled to take into account, is that they are not there simply to be adhered to when it is easy to do so. A significant part of their importance is in providing clear rules for difficult situations.

[113]On a related issue raised on the claimant’s behalf, evidence about staffing levels for FMEs would not have had any great relevance in these circumstances because the claimant had not exhausted that avenue of enquiry. And similarly the fact that it was a rare situation did not assist the claimant in circumstances where it was a rare situation expressly covered by guidance of which she was aware.

[114]On a further and related matter, the fact that the respondent may not have progressed with its organisational learnings2 as it should have done does not appear to me to cast any light on the quality of its decision making at the time of the claimant’s dismissal. Issue: 1.2.3.3 Having regard to inaccurate statements made by nursing director Lorraine Lawrie, who stated that the Claimant had technically sexually assaulted a detainee.

[115]The email was in the hearing bundle but Mr Parker’s evidence was that it was disregarded and that is what was recorded contemporaneously There was no reason for me to reject that evidence, 2 As to which I have not made any findings. Issue 1.2.3.4 Failing to call Dr Siddig as a witness in the gross misconduct hearing.

[116]I have considered that matter in relation to the investigation. Issue: 1.2.3.5 Failed to have adequate regard to the Claimant’s own experience and training in that she was experienced in taking vaginal swabs having worked as a nurse for 20 year, some of which was in obstetrics and gynaecology. and had received such as forensic training relating to taking samples from male detainees.

[117]The respondent was aware of this matter because the claimant herself had related her experience. However the panel also had evidence that the claimant did not have training in how to take the swabs for forensic purposes and evidence that FFLM guidelines were not followed.

[118]It was not unreasonable for the respondent to regard these matters as having a limited mitigating effect given all of the other circumstances of the case, in particular the fact that the claimant disregarded clear guidance not to take the swabs. Issue 1.2.3.6 Failed to place sufficient weight on the circumstances of the evening of 23/2/22 such as: 1.2.3.6.1 The Claimant informed the officer in charge of the investigation, DI Parker, that she had not had formal training form the police to take vaginal swabs from a female suspect and that the custody suit only stocked penile swab kits.

[119]The claimant has very frankly and fairly retracted the assertion that she told Mr Parker that she had not had the appropriate training before the Tribunal and has not sought to apportion any blame to Mr Parker. It was not clear from its findings whether the panel expressly rejected this assertion but they could reasonably have preferred Mr Parker’s evidence in the circumstances and in any event were entitled to place more weight on the claimant’s conscious disregard of the guidance. 1.2.3.6.2 That the Claimant was informed by DI Parker that advice from Dr Siddig at Haven was that any healthcare professional could take the swab and the penile kits could be used, but the labels needed to be amended to specify the part of the body the sample was from.

[120]The evidence before the panel was that information or advice from Dr Siddig was about the swab kits not who could take the swabs.

[121]Taking the claimant’s evidence at its highest, the claimant said to Ms Bllaca in the investigation meeting that the doctor at the Haven had said that there is no such thing as a specific kit: ‘A swab is just a swab. And said that if you have a healthcare professional present at the station, then it would be fine to do the swabs.’

[122]Even construing that statement in the way most favourable to the claimant’s case, ie that Dr Siddig was advising that any HCP could take the swab, the claimant was aware of what the respondent’s own policy said on this point. It was reasonable the for panel to conclude that there was very limited mitigation in a view expressed by an external doctor in the terms described. 1.2.3.6.3 That she had been cleared by Detective Seargent Stollard to take the swab.

[123]That was not the role of Mr Stollard and there was no evidence which supported this suggestion. It was not pursued by the claimant in submissions. 1.2.3.6.4 That the Claimant acted in good faith.

[124]I return to this issue to when looking in the round at whether it was reasonable to dismiss the claimant in the circumstances. It was recognized by the respondent that the claimant acted in good faith and this was referred to in the outcome. 1.2.3.6.5 The samples had been accepted by forensics and were usable.

[125]The issue was whether by not following the respondent’s procedure and undertaking an evidence gathering activity she did not have specific training for the claimant created an unacceptable risk that the evidence obtained would be inadmissible, not whether the samples were useable.

[126]Dr Ioannou drew my attention to authorities in the criminal sphere in support of the proposition that there is no absolute bar to the admissibility of irregularly obtained evidence in criminal proceedings. That seems to me to be an unsurprising state of affairs. However it was not the respondent’s position that the evidence would certainly be inadmissible.

[127]Clearly there is a risk created that such evidence may be inadmissible and that in turn creates a risk that a subsequent prosecution may be undermined. In this case there was in fact no prosecution. Nonetheless I cannot say that it is outside the range of reasonable responses for a police force to take with very great seriousness the possibility that evidence may be obtained in a way which threatens the viability of a criminal prosecution. Final issue: was dismissal within the range of reasonable responses.

[128]I should say something about parity of treatment. The only individual raised in evidence was Mr Parker. Mr Parker had been required to undertake some reflective learning after the incident. Lack of parity of treatment may be relevant for one of the three reasons identified in Hadjioannou v Coral Casinos: o That it led the claimant to believe certain conduct would not be treated as meriting dismissal; o That it showed the conduct was not the real reason for dismissal; o Decisions in truly parallel circumstances can provide evidence that dismissal was not reasonable in the circumstances.

[129]Only the third limb was potentially in play in this case, There were clearly differences between the two situations which meant that they are not truly parallel, in particular the fact that the claimant contravened clear guidance with which she had been issued. There was no evidence that Mr Parker had done so. He was not aware of the claimant’s guidance.

[130]Looking at whether it was reasonable in the circumstances to dismiss in the round, I note that the respondent had regard to the Police Code of Ethics and to the guidance that: ‘Any decision not to obey orders or follow instructions, where that transgresses policing policies or other guidance, must be able to withstand scrutiny.’

[131]The written evidence and the oral evidence of Mr Gardner to the Tribunal was that the claimant’s length of service, her explanations and her mitigation evidence were taken into account. That included: o Character references; o Helpful behaviour during the time when she was taken off her regular duties and put on restricted duties; o Features of the offence itself in particular that the claimant was acting in good faith and seeking to be helpful. The panel appropriately disregarded the claimant’s earlier reprimand.

[132]Mr Gardner made clear in his oral evidence that he did not look at risk of recurrence as a factor in deciding that dismissal was appropriate but rather he had regard to policing principles ‘(1) to maintain public confidence in the reputation of the police service, (2) to uphold the highest standards of policing to deter misconduct, and (3) to protect the public.’ The panel concluded that a lesser sanction would not uphold these objectives. The respondent was clearly entitled to have regard to those policing principles.

[133]What was specifically identified in respect of the claimant’s actions was that the duty of care to suspects in custody had not been met by conducting a highly invasive procedure without disclosing that the procedure was outside of the respondent’s policy. The panel also had regard to the risk to the criminal investigation and potential prosecution.

[134]I had to bear in mind that the respondent was entitled to take a serious view of conduct which created risks which would be serious if they eventuated even if those risks did not in fact eventuate. The fact that the conduct in this instance had not led to a complaint by the suspect, the undermining of a criminal case or indeed, on the evidence before me, any actual public awareness and consternation about the matters the subject of the investigation did not mean that the respondent was not entitled to take the view that it was very serious.

[135]I was initially troubled by the fact that the risk of recurrence apparently played no part in the respondent’s decision-making. In the authorities, an employee’s attitude may certainly be an aggravating feature which may justify a dismissal. A refusal to accept that something has been done wrong will undermine an employer’s confidence that there will not be a repeat offence. There is not however, any principle that where an employee is contrite and does admit fault, it can never be reasonable to dismiss for the misconduct found, although that will in many cases be a mitigating factor. Nor is there any authority to the effect that it can never be reasonable to dismiss if the employer has not turned its mind to the issue of recurrence or to dismiss even if the employer considered the issue and satisfied itself that there would be no recurrence. There are reasons why very serious misconduct may reasonably be subject to the sanction of dismissal even where there is no risk of recurrence; these include the need to maintain public confidence referred to by Mr Gardner.

[136]In any event, had the respondent turned its mind to the issue of risk of recurrence, there would have been factors on both sides of the equation. The claimant accepted that she had acted in contravention of her guidance but, in the way her case was presented at the disciplinary hearing, also sought to suggest that there was nothing wrong with the way the swabs were taken and dealt with.

[137]This has been a very difficult case. It would be impossible not to have sympathy for the claimant who made an error of judgment as a result of benign motives and has suffered very greatly as a result. It is not however for me to decide what I would have done in the respondent’s shoes. I consider that many reasonable employers would not have dismissed the claimant, bearing in mind that she had essentially accepted her error and taking into account other mitigating features.

[138]However having regard to the admitted breach of clear guidance, given the role the claimant occupied, given the nature of what occurred and the potential risks it engaged, I am not able to say that dismissal was not within the band of reasonable responses.

[139]The claim of unfair dismissal was not upheld for these reasons. Issue: 3. Wrongful Dismissal/Notice pay3.1 What was the Claimant’s notice period?

3.2 Was the Claimant paid for that notice period?

3.3 If not, was the Claimant guilty of gross misconduct? Did the Claimant do something so serious that the Respondent was entitled to dismiss without notice? C was dismissed without notice.

[140]I concluded that the claimant’s admitted conduct, given the risks it created and the fact that the claimant acted in breach of guidance knowingly, was a repudiatory breach of the contact of employment and the respondent was entitled to dismiss summarily for gross misconduct.

[141]For those reasons the wrongful dismissal claim was also not upheld.

Conclusions

[1]There is no reasonable prospect of the original decision being varied or revoked. There is nothing raised in Dr Ioannou’s letter on the claimant’s behalf which shows that reconsideration is necessary in the interests of justice.

[2]Dr Ioannou candidly says there is not much in the Judgment he disagrees with. He disagrees with the conclusion that the claimant’s dismissal was not unfair but does not identify any factors such as new evidence or a procedural mishap which would make it necessary to reconsider that conclusion.

[3]Dr Ioannou discusses at some length the suggestion made by the respondent that the claimant’s conduct could lead to criminal charges but goes on (correctly) to acknowledge that that facet of the case had little relevance to the decision to dismiss.

[4]Dr Ioannou raises a concern that since the hearing the respondent has reported the claimant to the Nursing and Midwifery Council. That is not a matter which is relevant to the issue of whether the Judgment should be reconsidered.

[5]Dr Ioannou disagrees with some findings I made about the evidence of Mr Bradley. The reconsideration process cannot be used to relitigate findings which a litigant is unhappy with in circumstances where there is no new Case Number: 2215353/2023 evidence which ought to be admitted or other reason why it would be in the interests of justice to reopen the findings.

[6]Much of the application seeks to reargue the central question of whether the decision to dismiss was within the range of reasonable responses. The reconsideration process is not intended to afford an opportunity for a party to make further submissions on a matter which was fully ventilated at the hearing.